BILL ANALYSIS �
AB 2396
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CONCURRENCE IN SENATE AMENDMENTS
AB 2396 (Bonta)
As Amended August 19, 2014
Majority vote
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|ASSEMBLY: |55-17|(May 23, 2014) |SENATE: |24-10|(August 21, |
| | | | | |2014) |
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Original Committee Reference: B., P. & C.P.
SUMMARY : Prohibits boards within the Department of Consumer
Affairs (DCA) from denying a professional license based solely
on a criminal conviction that has been withdrawn, set aside or
dismissed by the court.
The Senate amendments require a license applicant who has a
conviction that has been dismissed to provide proof of the
dismissal.
FISCAL EFFECT : According to the Senate Appropriations
Committee, DCA indicates that the majority of boards and bureaus
under its jurisdiction would have minor and absorbable costs.
However, the following boards indicate costs would be incurred
as a result of increased workload to conduct investigations on
license applicants with expunged convictions:
1)The Board of Behavioral Sciences (BBS) estimates annual costs
of $227,195. (Behavioral Science Examiners Fund)
2)The Board of Psychology estimates annual costs of $86,266.
(Psychology Fund)
3)The Board of Pharmacy estimates costs in 2015-16 of $56,000
and ongoing costs of $48,000. (Pharmacy Board Contingent
Fund)
4)The Dental Board estimates annual costs of $26,640. (State
Dentistry Fund)
COMMENTS :
1)Purpose of this bill. This bill would prohibit boards and
bureaus within DCA from denying a professional license to an
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applicant based solely on a prior conviction that was
dismissed by a court either because the individual completed
the terms of his or her sentence without committing any
additional offenses or because a dismissal would serve the
interests of justice. In doing so, the author aims to
alleviate barriers to employment after incarceration. This
bill is sponsored by the Alameda County Board of Supervisors.
2)Author's statement. According to the author, "[This bill] is
designed to reduce employment barriers for people with
criminal records who have been rehabilitated. [This bill]
allows them the opportunity to pursue meaningful employment
and work towards entering the middle class, instead of
struggling in low-wage jobs or returning to crime.
"In many cases, individuals seeking a professional license
struggle to achieve self-sufficiency because of consideration
of a dismissed record that is irrelevant to their ability to
perform the job. Under current law, even applicants who are
presumed to be rehabilitated by the court system may still
have their license denied.
"According to a 2007 report prepared by the Board of Barbering
and Cosmetology, of the 501 applicants denied by the Board
over the preceding five hearings, all 501 applicants possessed
criminal records. Only 33 applicants were determined to have
produced evidence of rehabilitation. [This bill] will
eliminate this fundamental unfairness within the law. In
addition, [this bill] will help address the shortage of
qualified labor in many fields, increase employment in those
fields, and spur economic growth."
3)Obtaining a dismissal of a conviction. Penal Code Sections
1203.4, 1203.4(a) and 1203.41 provide expungement relief to an
individual who has committed certain types of crimes. This
relief is not available to persons who were sentenced to
prison, or who have committed certain sex or other offenses,
as specified. While most major felonies result in a prison
sentence, not all felonies require a defendant to serve a
prison sentence. As a result, only persons who were convicted
of misdemeanors or felonies and sentenced to probation, which
may include jail time, or who were convicted of misdemeanors
or infractions and were not sentenced to probation, may have
their conviction dismissed.
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In order to obtain a dismissal, a person must successfully serve
and complete all the terms of their sentence, including paying
any restitution and fines, and not be charged with any other
offenses. In addition, a person must file a petition with the
court, which may include information about the offense,
letters of recommendation, proof of compliance with the terms
of probation, and any other materials that may assist the
court in making a decision. The petition must also be served
to the applicable district or city attorney, who may object to
the petition and provide evidence to the court that the
dismissal should not be granted. The court will decide on the
petition, and if the petition is denied, an individual may
file for reconsideration or refile the petition at a later
date. As a result, this "set aside and dismissal" remedy is
limited both in terms of scope and application.
4)License denials. Over half of the boards under DCA require
criminal history information, and other boards require
applicants to self-report any criminal history. While
criminal background checks are supposed to show whether a
conviction has been dismissed, this does not always occur. If
a board denies a license, it is required to notify the
applicant by letter, which provides the applicant with the
specific reasons why the application was denied. An applicant
has the right to appeal the denial of the application by
requesting a statement of issues hearing, and must submit a
request for that hearing within 60 days of the date of the
letter. Once a written request for a hearing is made, it is
forwarded to the Attorney General's office. At the hearing,
an applicant may present evidence and witnesses to prove that
his or her application for a certificate or license should not
be denied.
5)Professional boards have great discretion when determining
whether to deny a license. Existing law authorizes each board
to deny a professional license based on an applicant's past
conviction, "act involving dishonest, fraud, or deceit," or
other act that could subject a licensee to license suspension
or revocation, if that conviction or act is "substantially
related" to the qualifications, functions, or duties of the
business or profession for which application is made. This
discretion does not distinguish between types of convictions
or types of dishonest acts, and these terms are so broad that
many convictions or acts could be determined by a board to be
cause for denial of a license. In addition, there are no
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other qualifications, such as how long ago a person was
convicted or had committed a bad act, or whether a board has
to take that length of time into consideration. It is up to
each board to determine what they consider as criteria for
license denial or rehabilitation.
Analysis Prepared by : Eunie Linden / B., P. & C.P. / (916)
319-3301
FN: 0005290